Section 329IAC10-21-13. Corrective action program

   (a) The owner, operator, or permittee must submit a proposal for a plume and site characterization plan, as described in subsection (b), and initiate an assessment of various corrective measures, as described in subsection (d), within ninety (90) days of determining any of the following:

(1) A statistically significant increase above any ground water protection standard, as identified in section 11(a) or 11(b) of this rule, has occurred during an assessment ground water monitoring program for any constituent that is listed in section 16 of this rule (Table 2).

(2) At the request of the commissioner, and during assessment monitoring, a secondary constituent listed under section 11(c) of this rule has exceeded levels that are twice the ground water protection standard for that constituent.

(3) At the request of the commissioner, and during detection monitoring, a constituent listed in section 15(a) of this rule (Table 1A) has shown a concentration that is a statistically significant increase over a ground water protection standard established during a previous assessment monitoring program. Previous monitoring programs include those programs conducted under section 10 of this rule, or Phase II programs conducted under 329 IAC 2-16, which was repealed in 1996.

  (b) The proposal for a plume and site characterization plan must include the following:

(1) Characterization of the chemical and physical nature of the contaminants, including vertical and horizontal extent of the release by:

(A) proposing location and installation procedures for additional assessment ground water monitoring wells, as necessary; and

(B) identification of all constituents to be analyzed during subsequent ground water sampling events.

(2) Characterization of the contaminated aquifer, limited to the area of the contamination plume. Aquifer characterization may include all of the items described in this subsection.

(3) Proposed location and installation procedures of at least one (1) additional ground water monitoring well at the facility boundary in the direction of contaminant migration.

(4) The process by which all persons who own or reside on land that directly overlies any part of the contaminated ground water plume will be notified.

(5) The process for sampling and analyzing ground water at any private or public intake, as specified by the commissioner, unless permission to sample cannot be obtained from the owner of the intake.

(6) The process by which drinking water will be supplied to all public and private ground water intakes affected by the contamination.

(7) Procedures that will be implemented to stop further migration of contaminants.

  (c) Implementation of the plume and site characterization plan must include the following:

(1) Within thirty (30) days of receiving written approval of the initial corrective action proposal, the owner, operator, or permittee shall implement subsection (b)(1) through (b)(7).

(2) The owner, operator, or permittee shall submit a corrective action progress report, including any sampling and analysis results, on a semiannual basis, until the contamination has been determined to be cleaned up as defined in subsection (j).

(3) The ground water monitoring well identified in subsection (b)(3) must be sampled in accordance with section 10(b) and 10(d) of this rule.

(4) If any additional constituent is detected in the ground water monitoring well identified in subsection (b)(3) and that constituent exceeds its ground water protection standard at a statistically significant concentration, then the owner, operator, or permittee shall include that constituent in the sampling of the ground water monitoring wells identified in subsection (b)(1).

(5) The owner, operator, or permittee shall gather sufficient information from the plume and site characterization plan to be presented at the public meeting required in section 12 of this rule and incorporated in the final decision on an corrective action remedy as described in subsection (e).

  (d) The assessment of various corrective measures must be initiated within ninety (90) days of determining that a corrective action program is necessary. The owner, operator, or permittee shall complete the assessment of various corrective measures in a reasonable time, with the approval of the commissioner, and in accordance with the following:

(1) The assessment of various corrective measures must include an analysis of the effectiveness of potential corrective measures in meeting all of the remedy requirements and objectives as described in subsection (e).

(2) The analysis must include the following:

(A) The performance, reliability, ease of implementation, and potential impacts of appropriate potential remedies. This shall include safety impacts, cross-media impacts, and control of exposure to any residual contamination.

(B) The time required to begin and complete the remedy.

(C) Implementation costs of the proposed remedy.

(D) The institutional requirements, such as state or local permit requirements, or other environmental or public health requirements that may substantially affect remedy implementation.

(E) A discussion by the owner, operator, or permittee of the corrective measures assessment, prior to the selection of a remedy, in a public meeting as required in section 12 of this rule.

(3) The owner, operator, or permittee shall continue to monitor in accordance with the assessment ground water monitoring program as required in section 10 of this rule.

  (e) The selection of the corrective action remedy must be based on the assessment of various corrective measures conducted under subsection (d), including the following:

(1) The owner, operator, or permittee shall:

(A) select a remedy that, at a minimum, meets the standards listed in subdivision (2); and

(B) submit to the commissioner, within sixty (60) days after the public meeting required in section 12 of this rule, a report describing the selected remedy and how the remedy meets the standards of subdivision (2).

(2) The owner, operator, or permittee shall select a remedy that:

(A) will be protective of human health and the environment;

(B) will attain the ground water protection standard as required in section 11 of this rule;

(C) will reduce or eliminate, to the maximum extent practicable, further releases of those constituents in sections 15 and 16 of this rule (Table 1A, Table 1B, and Table 2), and in section 11(c) of this rule that may pose a threat to human health or the environment;

(D) will comply with standards for waste management as required in subsection (i); and

(E) is chosen after considering input from the public hearing required under section 12 of this rule.

(3) In selecting a remedy that meets the standards of subdivision (2), a report must be submitted that includes the following factors:

(A) The long and short term effectiveness and protection that is offered by the potential remedy, along with an assessment of the remedy's probable outcome, based on the following considerations:

(i) The magnitude of reduction in the existing risks.

(ii) The magnitude of residual risks in terms of likelihood of further releases, due to waste remaining after implementing a remedy.

(iii) The type and degree of long term management required, including monitoring, operation, and maintenance.

(iv) The short term risks that might be posed to the community, workers, or the environment during the implementation of such a remedy. Short term risk assessment shall include potential threats to human health or the environment associated with excavation, transportation, redisposal, or containment of waste or contaminated materials.

(v) The estimated time until corrective measures are completed.

(vi) The potential for exposure of humans and environmental receptors to remaining waste, including the potential threat associated with excavation, transportation, redisposal, or containment of waste or contaminated materials.

(vii) The long term reliability of the engineering and institutional controls.

(viii) The potential need for additional or alternative remedies.

(B) The effectiveness of the remedy in controlling the source and in reducing further releases based on the following considerations:

(i) The extent to which containment practices will reduce further releases.

(ii) The extent to which treatment technologies may be used to reduce further releases.

(C) The ease or difficulty of implementing a potential remedy based on the following considerations:

(i) The technical difficulty of constructing the proposed remedy.

(ii) The expected operational reliability of the proposed remedial technologies.

(iii) The need to coordinate with and obtain necessary approvals and permits from other local or state agencies.

(iv) The availability of necessary equipment and specialists.

(v) The available capacity and location of needed treatment, storage, and disposal facilities.

(D) The capability of the owner, operator, or permittee to manage the technical and economic aspects of the corrective measures.

(E) The degree to which community concerns are addressed by a potential remedy.

(4) The selected remedy report, as described in subdivision (1)(B), must include a schedule for initiating and completing remedial activities. This schedule must be based on the following considerations:

(A) Vertical and horizontal extent, and physical or chemical characteristics of contamination.

(B) Direction of contaminant movement.

(C) Capacity of remedial technologies to achieve compliance with ground water protection standards, as established under section 11 of this rule, and any other remedial objectives.

(D) Availability of treatment or disposal capacity for waste volumes managed during implementation of remedial measures.

(E) Practical considerations of proposing to use currently unavailable technology that may offer significant advantages over readily available technology, in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives.

(F) Potential risks to human health or the environment from exposure to contamination prior to completing remedial measures.

(G) Resource value of the zone of saturation or aquifer, including the following:

(i) Current and future uses.

(ii) Proximity and withdrawal rate of users.

(iii) Ground water quantity and quality.

(iv) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents.

(v) The hydrogeologic characteristics of the MSWLF and surrounding land.

(vi) Ground water removal and treatment costs.

(vii) The cost and availability of alternative water supplies.

(H) Practical capability of the owner, operator, or permittee to achieve the remedy.

(I) Other relevant factors that may be determined by the commissioner.

(5) Selection of a remedy and implementation schedule must be submitted to the commissioner for review and approval.

(6) The commissioner may determine that remediation of a released constituent, listed in either section 16 of this rule (Table 2) or in section 11(c) of this rule, is not necessary if either of the following are demonstrated to the satisfaction of the commissioner:

(A) Remediation is technically impracticable.

(B) Remediation would result in unacceptable cross-media impacts.

(7) If the commissioner determines that an aquifer cannot be remediated, the owner, operator, or permittee shall contain the aquifer to prevent the migration of contaminants.

(8) A determination made by the commissioner under subdivision (6) will not affect the authority of the state to require source control measures or other necessary measures to:

(A) eliminate or minimize further releases to the ground water;

(B) prevent exposure to the ground water; or

(C) remediate ground water quality to technically achievable concentrations and significantly reduce threats to human health or the environment.

  (f) Based on the schedule established under subsection (e)(4) and approved by the commissioner under subsection (e)(5), the owner, operator, or permittee shall do the following:

(1) Establish and implement a corrective action ground water monitoring program that:

(A) at a minimum, meets the requirements of an assessment monitoring program under section 10 of this rule;

(B) indicates the effectiveness of the corrective action remedy; and

(C) demonstrates compliance with the ground water protection standard under subsection (j).

(2) Implement the corrective action remedy selected under subsection (e).

(3) Take any interim measures necessary to ensure the protection of human health and the environment. Interim measures must, to the greatest extent practicable, be consistent with remedial objectives and, if possible, contribute to the performance of remedial measures. The following factors must be considered in determining whether interim measures are necessary:

(A) Time required to develop and implement a final remedy.

(B) Actual and potential exposure of nearby populations or environmental receptors to regulated constituents.

(C) Actual and potential contamination of potentially useable water supplies or sensitive ecosystems.

(D) Further degradation of the ground water that may occur if remedial action is not initiated expeditiously.

(E) Weather conditions that may cause regulated constituents to migrate or be released.

(F) Potential for:

(i) fire or explosion; or

(ii) exposure to regulated constituents as a result of an accident, a container failure, or a handling system failure.

(G) Other situations that may pose threats to human health or the environment.

(4) Submit a report to the commissioner detailing the progress and performance of the selected remedy. The report must be submitted on a semiannual basis or as determined by the commissioner.

  (g) An owner, operator, or permittee or the commissioner may determine, based on information developed after implementation of the remedy has begun or on other information, that compliance under subsection (e)(2) is not being achieved through the remedy selected. In such cases, after approval by the commissioner, the owner, operator, or permittee shall implement other methods or techniques that could practicably achieve compliance with the requirements unless the owner, operator, or permittee makes a determination under subsection (h).

  (h) If the owner, operator, or permittee determines that compliance with requirements under subsection (e)(2) cannot be technically achieved with any currently available methods, the owner, operator, or permittee shall:

(1) apply for a commissioner's certification that compliance with requirements under subsection (e)(2) cannot be achieved with any currently available methods;

(2) implement alternate measures to contain contamination, as necessary, to protect human health, the environment and water resources;

(3) implement alternate measures that are technically practicable and consistent with the overall remedial objective to:

(A) control contamination sources; and

(B) remove or decontaminate equipment, units, devices, or structure; and

(4) within fourteen (14) days of determining that compliance cannot be achieved under subsection (g), submit a report to the commissioner that justifies the alternative measures. The report must be approved by the commissioner prior to implementation of any alternative measures.

  (i) During a corrective action program, all solid waste managed under a remedy that is required under subsection (e), or under an interim measure that is required under subsection (f)(3), must be managed in a manner that:

(1) is protective of human health and the environment; and

(2) complies with the applicable requirements of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., as amended by the Hazardous and Solid Waste Amendments of 1984.

  (j) Remedies selected under subsection (e) are considered complete when the owner, operator, or permittee has demonstrated to the satisfaction of the commissioner the following:

(1) Ground water protection standards have been met at all points within the plume of contamination.

(2) For a period of three (3) consecutive years, using statistical procedures and performance standards outlined in section 6 of this rule, the following ground water protection standard, whichever is applicable, has not been exceeded:

(A) The ground water protection standards for the constituents listed in section 16 of this rule (Table 2).

(B) Levels that are twice the concentration of any secondary constituent identified in section 11(c) of this rule.

(3) All corrective actions required to complete the remedy have been satisfied.

  (k) The commissioner may, after considering the factors indicated in subsection (l), specify an alternate period during which the following demonstration, whichever is applicable, must be made:

(1) The concentrations of the constituents listed in section 16 of this rule (Table 2) have not exceeded ground water protection standards.

(2) The concentrations of constituents listed in section 11(c) of this rule have not exceeded levels that are twice the ground water protection standard.

  (l) The following factors will be considered by the commissioner in specifying an alternative time period:

(1) Vertical and horizontal extent and concentration of the release.

(2) Physical and chemical characteristics of the regulated constituents within the ground water.

(3) Accuracy of the ground water monitoring or modeling techniques, including any seasonal, meteorological, or other environmental variabilities that may affect the accuracy.

(4) Physical and chemical characteristics of the affected ground water.

(5) Physical and chemical characteristics of the affected or potentially affected aquifer system.

  (m) Within fourteen (14) days after the completion of all remedial measures, a certification report, signed by the owner, operator, or permittee and a qualified ground water scientist, shall be submitted to the commissioner for written approval. The report must certify that the remedy has been completed in compliance with the requirements of subsection (j).

  (n) Upon receipt of the commissioner's written approval of the certification report specified in subsection (m), the owner, operator, or permittee shall be released from the requirements for financial assurance for corrective action specified in 329 IAC 10-39-10.

  (o) Corrective action programs that have been initiated under 329 IAC 1.5, which was repealed in 1989, or under 329 IAC 2, which was repealed in 1996, must continue as approved by the commissioner, and the commissioner may incorporate requirements found under this rule. (Solid Waste Management Division; 329 IAC 10-21-13; filed Mar 14, 1996, 5:00 p.m.: 19 IR 1874; errata filed Apr 4, 1996, 4:00 p.m.: 19 IR 2047; filed Mar 19, 1998, 11:07 a.m.: 21 IR 2808; errata filed Jun 10, 1998, 9:23 a.m.: 21 IR 3939; filed Aug 2, 1999, 11:50 a.m.: 22 IR 3855; errata filed Sep 8, 1999, 11:38 a.m.: 23 IR 27; filed Feb 9, 2004, 4:51 p.m.: 27 IR 1845, eff Apr 1, 2004)